Citation Nr: 0935241
Decision Date: 09/18/09 Archive Date: 09/23/09
DOCKET NO. 03-25 776 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for a low back disorder as
secondary to service-connected left knee disability.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from July 1955 to July
1958.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans Appeals (Board) from a May 2003 rating
decision of the VA Regional Office in Wichita, Kansas that
denied service connection for a back disorder as secondary to
service-connected left knee disability.
The appellant was afforded a personal hearing in March 2004
before an Acting Veterans Law Judge sitting at Wichita,
Kansas. The transcript is of record. The Board remanded the
issue for further development in January 2005.
The Board denied the veteran's claim in June 2007 and an
appeal to the United States Court of Appeals for Veterans
Claims (Court) ensued. In response to a Joint Motion by the
parties, the Court vacated the Board's decision in December
2007, and remanded the matter to the Board for further
consideration.
The claim was remanded in February 2008 to schedule a
personal hearing. A hearing was conducted by videoconference
in May 2008 before the undersigned Veterans Law Judge sitting
at Washington, DC. The transcript is of record. The case
was remanded by Board decision in June 2008.
Following review of the evidence, the appeal is once again
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the appellant if further
action is required.
REMAND
As indicated in the June 2008 remand, the issue under
consideration was addressed in a Joint Motion by the parties
who found that although it had been articulated that the
appellant's low back was not caused by service-connected left
knee disability, it had not been determined whether or not
there was aggravation of a nonservice-connected condition by
service-connected disability. See 38 C.F.R. § 3.310(a)
(2009); Reiber v. Brown, 7 Vet.App. Allen v. Brown, 7
Vet.App. (1995). In this regard, a special orthopedic
examination with a clarifying opinion was scheduled to
ascertain if service connection was in order for the
Veteran's low back disorder as the result of aggravation by
the service-connected left knee disorder.
The Board observes, however, that in the ensuing VA
compensation examination report dated in March 2009, the
examiner does not respond to the primary question presented.
Although it was reiterated that it was not felt that
thoracolumbar osteoarthritis was due to left knee arthritis,
or that there was a relationship between the two disorders,
the examiner still does not provide a sufficient response as
to whether left knee symptomatology has aggravated lumbar
spine pathology to any extent. Because there is still a lack
of clarity, it is the opinion of the Board that the case
should be remanded for further review and a supplemental
medical opinion to the VA examination report of June 2008.
A remand by the Board confers on an appellant the right to VA
compliance with the terms of the remand order and imposes on
the Secretary a concomitant duty to ensure compliance with
those terms. See Stegall v. West, 11 Vet. App. 268, 271
(1998). In this regard, the Board points out that the
examination request was not sufficiently complied with and
the examination report must be returned as inadequate.
Accordingly, the case is REMANDED for the following actions:
1. The case should be referred to
the same VA physician who conducted
the VA examination in June 2008 for
another review and opinion (or
another comparable VA physician if
that one is not available). The
claims folder and a copy of this
remand should be made available to
the examiner for review. The
examination report should indicate
whether or not a review of the
claims folder is accomplished.
Based on a thorough review of the
evidence of record, the examiner
should provide an opinion, with
complete supporting rationale, as
to whether it is at least as likely
as not (50 percent probability or
better) that the Veteran's low back
disorder has been made chronically
worse (aggravated) by the service-
connected left knee disability. If
aggravation is found, the examiner
should offer an assessment of the
extent of additional disability of
the low back resulting from
aggravation by the left knee.
Due consideration should be given
to the June 2008 clinical reports
from the Veteran's private
physician, Dr. R. Dopps, and these
findings should be reconciled in
the VA examiner's opinion.
In formulating the medical opinion,
the examiner is asked to consider
that the term "at least as likely
as not" does not mean within the
realm of possibility, rather that
the weight of the medical evidence
both for and against the conclusion
is so evenly divided that it is as
medically sound to find in favor of
causation as it is to find against
causation.
2. The RO should ensure that the
medical report requested above
complies with this remand,
especially with respect to the
instructions to provide a competent
medical opinion. If the report is
insufficient, or if a requested
action is not taken or is
deficient, it should be returned to
the examiner for correction. See
Stegall v. West, 11 Vet. App. 268
(1998).
3. After taking any further
development deemed appropriate, the
RO should re-adjudicate the issue
on appeal. If the benefit is not
granted, the veteran and his
representative should be furnished
a supplemental statement of the
case and be afforded an opportunity
to respond before the record is
returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).